An Ensemble Performance by the Texas Supreme Court

Last Friday, the Texas Supreme Court ruled in favor of the plaintiffs in Patel v. Texas Department of Licensing and Regulation. This was another great win for the Institute for Justice, which described the case in a press release:

The case began in 2008, when TDLR suddenly decided that eyebrow threading—a traditional South Asian practice that uses only cotton thread to remove eyebrow hair—required the same license that conventional cosmetologists need for techniques like waxing, makeup and chemical peels. TDLR issued $2,000 penalties to threaders across the state and ordered them to quit their jobs until they completed coursework in private beauty schools costing between $7,000 and $22,000. None of this coursework is required to address eyebrow threading and the state’s cosmetology examinations do not require any knowledge of threading.

“Today’s decision is crystal clear: The government can’t make you do useless things to keep your job,” said lead attorney Wesley Hottot…. “The Texas Constitution protects everyone’s right to pursue the occupation of their choice without unreasonable government interference. State officials can’t just meddle with people’s ability to go to work and support their families. Regulations must have reasons.”

“I am overjoyed,” said Ash Patel, a plaintiff in the case and the owner of an eyebrow threading business that was forced to close its doors…. “All I ever wanted was a fair chance to pursue my American Dream, … and now I can.”

In addition to being a good result for the parties and for the cause of freedom, the Court’s opinion is noteworthy because of the way it deals with the “due course of law” provision of the Texas Constitution. Taken together, the majority’s opinion and the various dissents and concurrences provide a fascinating dialogue in which the history and the future of economic rights and their protection under federal and state law are thoroughly discussed.

To understand that discussion it helps to know about two US Supreme Court decisions that have taken on iconographic significance in American legal thought. In 1873, in the Slaughter-House Cases, the Court held that the 14th Amendment’s “privileges or immunities” clause does not impose any limits on the states’ power to regulate the activities of individuals and businesses within their borders. Initially this was thought to place all state economic regulation beyond the Court’s jurisdiction. However, without explicitly reversing itself, in 1905, in Lochner v. New York, the Court held that, while the privileges or immunities clause might be null and void, the 14th Amendment’s “due process” clause nevertheless prohibits “unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract.” This so-called “Lochner doctrine” was anathema to progressives, who wanted more rather than less economic regulation. Under intense pressure the Supreme Court eventually agreed to abandon it in favor of what has become known as “judicial deference.” As the Court put in 1938, in Untied States v. Carolene Products, “Regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless … it is of such a character as to preclude the assumption that it rests upon some rational basis.” Following the Supreme Court’s example, state courts also adopted this “rational basis” test, and Americans’ economic rights were relegated to the second-class status in which they have languished ever since.

In Patel v. Texas Department of Licensing and Reg., however, the Texas Supreme Court adopts a significantly less deferential approach. Writing for the majority, Justice Johnson explains:

Texas due course of law protections in Article I, § 19 [of the Texas Constitution], for the most part, align with the protections found in the Fourteenth Amendment to the United States Constitution. But, that having been said, the drafting, proposing, and adopting of the 1875 Constitution was accomplished shortly after the United States Supreme Court decision in the Slaughter-House Cases by which the Court put the responsibility for protecting a large segment of individual rights directly on the states. Given the temporal legal context, Section 19’s substantive due course provisions undoubtedly were intended to bear at least some burden for protecting individual rights that the United States Supreme Court determined were not protected by the federal Constitution. That burden has been recognized in various decisions of Texas courts for over one hundred and twenty-five years. We continue to do so today: the standard of review for as-applied substantive due course challenges to economic regulation statutes includes an accompanying consideration as reflected by cases referenced above: whether the statute’s effect as a whole is so unreasonably burdensome that it becomes oppressive in relation to the underlying governmental interest.

In dissent, Chief Justice Hecht, raises the specter of a revival of the hated Lochner doctrine and points out that economic rights aren’t the only rights that courts might take it into their heads to protect under a less deferential regime:

The Judiciary’s authority is enormous and not lightly to be exercised. Justice Powell once observed that “[t]he history of substantive due process counsels caution and restraint.” The history to which he referred was the Supreme Court’s own adventure with substantive due process beginning with Lochner v. New York, in which the Court abrogated a state statute as “unreasonable, unnecessary and arbitrary”, and ending with United States v. Carolene Products Company, in which the Court established that a statute with any rational basis will be upheld. The Court disregards the federal courts’ experience with substantive due process in Lochner and its progeny, invents a new test unprecedented in American jurisprudence, and ushers in a new era of government by judges.

The Court, and JUSTICE WILLETT’S concurring opinion in its wild championing of economic liberty, seem oblivious to the reality that social liberty is no less important. The same substantive due process that can free eyebrow threaders from onerous training requirements can also be used to establish a right of privacy not otherwise to be found in the Constitution. Are restrictions on abortion “oppressive”? How about restrictions on marriage? Unconstrained by any meaningful standard, substantive due process allows judges to define liberty according to their personal policy preferences. History and reason warn that the Court has gone too far.

To which Justice Johnson responds by saying:

The CHIEF JUSTICE refers to rediscovering and unleashing “the Lochner monster” if legislative enactments are measured against a standard other than the rational relationship standard…. But as discussed above, Texas courts, including this Court, have expressed and applied various standards for considering as-applied substantive due process claims for over a century. And it is those decisions on which the standards we set out today are based. Surely if those cases represented a “monster” running amuck in Texas, this Court would have long ago decisively dealt with it.

Courts must extend great deference to legislative enactments, apply a strong presumption in favor of their validity, and maintain a high bar for declaring any of them in violation of the Constitution. But judicial deference is necessarily constrained where constitutional protections are implicated.

These excerpts do not do justice to an exercise in jurisprudence that exhibits remarkable wit and erudition throughout. The majority’s opinion, both dissents, and both concurrences are all worth reading in their entirety. For sheer entertainment value, however, you can’t beat the concurrence written by Justice Willlett. It starts with a quote from Frederick Douglas and ends with a quote from Davy Crockett. It includes epigrams worthy of Oscar Wilde (“Politicians decide if laws pass, but courts decide if those laws pass muster”; “Threaders with no license are less menacing than government with unlimited license”), and jokes that made me laugh out loud:

Unlike some states, Texas doesn’t yet require florists, interior designers, horse massagers, ferret breeders, or fortunetellers to get state approval (though the soothsayers would presumably see it coming).

But what I liked best was the measured — but devastating — attack on Oliver Wendell Holmes, in which Willetts reminds his readers that, among his many faults, Holmes was a eugenicist who admitted that it “gave me pleasure, establishing the constitutionality of a law permitting the sterilization of imbeciles.” Holmes has been lionized by progressives for more than a century. It’s about time someone gave him a thrashing. He’s had one coming for a long, long time.

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